October 1, 2012

Pulaski County v. Elrod, et al., Pulaski, 1902

PULASKI COUNTY v. ELROD et al.

COURT OF APPEALS OF KENTUCKY

66 S.W. 1017; 1902 Ky. LEXIS 534; 23 Ky. L. Rptr. 2231

March 4, 1902, Decided

PRIOR HISTORY:  [**1] 
Appeal from circuit court, Pulaski county. Action by Pulaski county against Walter Elrod and others on the bond of Walter Elrod as sheriff. Judgment for defendants, and plaintiff appeals.

DISPOSITION: Reversed.

COUNSEL: G. W. Shadoan, for appellant.

Jas. Denton and H. S. Robinson, for appellees.

JUDGES: DU RELLE, J.

OPINION BY: DU RELLE

OPINION

 [*1017]  DU RELLE, J. Pulaski county instituted an action against Elrod, as sheriff of Pulaski county, and the sureties on his official bond, to compel a settlement of his accounts of receipts and disbursements of a "road tax or fund," alleging the amount received by him during the year 1897; that there were outstanding "road orders or certificates" ordered by the fiscal court to be paid out of the road fund for that year, the amount of which was unknown, and which Elrod had refused to pay; that commissioners had been appointed to make settlement of his account as to the road fund, but that, owing to a difference as to the amount of the commission to be allowed him, he had refused to complete the settlement; that, if the settlement were completed, he would be found owing the county a considerable amount. The prayer was that a settlement be compelled, and for a judgment for the amount found due thereon. An  [**2] amended petition  [*1018]  was filed, alleging the full amount collected on the road tax to be $4,180.45; that he paid out on road orders $3,605.47; that, after crediting him with his commission for collection and distribution, there was a balance due to the county of $317.75; that the treasurer of the county had been, by order of the fiscal court, ordered and directed to make demand and collect that amount, and had made demand, but payment bad been refused. The judgment prayed was for $317.75, with interest. A demurrer to the petition as amended was sustained.

Counsel for appellees assumes that the action is by the county to recover the amounts ordered to be paid out of the road tax upon claims. We do not so understand the petition as amended. The action is for the amount which he was ordered by the fiscal court to pay the county treasurer. Whether the original petition was in pursuance of the proper mode to compel a settlement need not be considered, as that relief seems abandoned. But it seems clear that, if the averments of the amendment are true, the sheriff was bound to pay over to the county treasurer the unexpended amount of the road tax in his hands upon the order alleged to have been  [**3] made by the fiscal court. We think, therefore, that the petition states a cause of action, and the judgment is reversed, with directions to set aside the order sustaining the demurrer, and for further proceedings consistent herewith.

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